(Editor's note: This is the second of two columns on the constitutionality of Obamacare.)
Last Thursday, I opined that the U.S. Supreme Court will uphold The Patient Protection and Affordable Care Act (Obamacare) under Congress' power to provide for the general welfare.
The second issue, is this: Did Congress under Article I, Section 8 have the power to fund Obamacare by imposing an individual mandate? That is, does Congress have power to require every American (or their employer) either to purchase health Insurance from a health insurance carrier or to pay a fine?
There is, of course, the possibility that the court will uphold the legislation under the commerce clause. But is an American reading a book in his own living room engaged in interstate commerce? Can it fairly be said that because 20 or 50 years from now, he may be unable to pay for hospital care, and that the government may be required to pay those bills, that he is presently engaged in interstate commerce? Or that his present conduct affects interstate commerce?
Does the power to regulate interstate commerce give Congress power to require individual Americans to engage in commerce -- that is, to buy insurance? I don't think so.
It is one thing to regulate the conduct of someone engaged in or intending to become engaged in the near future. It is a very different thing to tell someone that he must get engaged in interstate commerce.
The commerce clause argument in favor of the individual mandate, however, is also premised on Congress' additional power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers."
It will be argued that the individual mandate has been determined by Congress to be "necessary" or "proper" to support the health care scheme. When an America has health insurance, that limits the risk that the government, somewhere in the future, will be required to pay that American's health care bills, or, at least, substantial portions thereof.
It can be argued that if an American refuses to buy such coverage, the penalty will create a fund which the government can use to pay his uncovered bills. But if that were the case, then the "penalty" is very much like a "tax," (I am using the word "tax" in its everyday nontechnical sense.) To put it another way, forcing someone to pay money to the government to provide a fund to help the government deal with health care costs looks to me to be more in the nature of an exercise of the "taxing" power," than a "regulation of commerce."
Therefore, it seems to me that if the individual mandate is to be upheld, the justification will again have to be found in the taxing power. Congress clearly has ... "power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States." Note, there is no mention that Congress has power to collect penalties to provide for the general welfare.
So, is the individual mandate a tax? A duty? An impost? An excise? As used in Article I, Section 8, the word "tax" is used in a technical sense. In common parlance, we refer to duties, imposts and excise as "taxes." But in Article I, Section 8, a "tax" is something other than a duty, impost or excise.
Section 8 clearly provides that "Congress shall have the power to lay and collect taxes ... to ... provide for ... the general welfare." But as requiring someone to buy insurance is not a tax on "income," the 16th Amendment, which allows Congress "to lay and collect taxes on incomes, from whatever source derived, without apportionment among the states, and without regard to any census or enumeration," clearly has no application.
And if it is a "tax," it is clearly unconstitutional because Article 8 provides, "No capitation, or other direct tax (as opposed to a 'requisition') shall be laid unless in proportion to the census or enumeration herein before directed to be taken." And whatever else can be said about the individual mandate, no one has claimed that it was created "in proportion to the census."
Additionally, it is obvious that the individual mandate is not a duty or and impost. Duties and imposts are levies on goods imported into the U.S.
So, if it isn't a tax ( in the constitutional sense), a duty or an impost, then to be authorized by the Constitution, it would have to be an excise. Is it?
An excise is a tax on doing something. It can be a tax on the production, use, sale or transfer of goods. Or it can be a tax on doing business, on the right to employ another, or on earning income. It can be a tax on passing one's property to an heir or legatee at death. So, if it is an excise, what "doing something" is being taxed? Breathing? Living? Being a citizen? Will the court for the first time say that Congress can lay and excise on the privilege of "being an American?" Or can Congress levy an excise on the privilege of "doing nothing" (not buying insurance)?
And of course, while Congress has been given "power to lay and collect taxes, duties, imposts and excises," neither that section nor any other empowers Congress to require Americans to buy goods or services from anyone.
The court will find that Congress has power to provide for national health care. It seems to me that Alexander Hamilton's argument will again prevail, just as it prevailed when the U. S. Supreme Court upheld Social Security in the 1930s.
So, I think the constitutionality of the act will turn on my second question: Can Congress lay an excise on the right of Americans to breathe, live, or to be Americans?
The court never has said Congress has that power up until now. I am guessing it won't do so now. If it allows the funding penalty to stand, it will have to say that an excise can be a tax on"doing something, and even on doing nothing.
If Congress has such power, bye, bye liberty. It could require every American to purchase insurance coverage from the day he is born until the day he dies. And it could then also tax eating, sleeping, breathing .....
But given the fact that our forefathers came to America in search of liberty, it is really hard to believe that they gave Congress power to tax their right to breathe or be Americans.
Posted Online: Dec. 14, 2011, 2:30 pm - Quad-Cities Online
by John Donald O'Shea
Copyright 2011, John Donald O'Shea
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